Weicker May Set Future Tone

Weicker Appointments Could Set Tone For State's Highest Court

December 28, 1991|By LYNNE TUOHY; Courant Staff Writer

If state Supreme Court Justice Alfred V. Covello is appointed to the federal bench, it would create for Gov. Lowell P. Weicker Jr. a rare and unexpected opportunity to shape the state's highest court for years to come.

Weicker entered office knowing he would get to replace three of the Supreme Court's seven justices, those who would reach the mandatory retirement age of 70 during the first two years of his tenure as governor.

If Covello, 58, resigns from the court to take a federal judgeship, Weicker will be in a position to appoint four justices -- a majority on the court.

"That's very significant, because he'll get a chance to shape the court the way he wants for the next 10 or 15 years, depending on the age of the judges he appoints," said Hartford lawyer Wesley W. Horton, an expert on state constitutional law.

"I think that one good thing about Weicker is that he's a lawyer himself," Horton said. "He's conscious of the fact that the people who should be on the courts are the best-qualified people."

Stanley A. Twardy Jr., chief of staff for Weicker, said that Covello's departure from the bench would give Weicker "a unique opportunity to shape the course of the future in his first two years in office."

"I think it's an exciting opportunity for the governor to shape the highest court, to make it one of the premiere Supreme Courts in the nation," Twardy said.

Weicker already has appointed one justice -- constitutional scholar Robert I. Berdon -- who joined the court last summer when Justice T. Clark Hull retired. Two other justices are scheduled to retire in 1992 when they reach age 70 -- David M. Shea July 1 and Robert D. Glass Nov. 28.

Covello, who was interviewed by FBI agents Friday, is still undergoing background checks and probably would not be nominated by President Bush for a federal post until March. He then would have to be confirmed by the U.S. Senate, so his actual appointment to the bench is not expected before late spring or early summer.

Also on the state Supreme Court are Chief Justice Ellen A.

Peters, 61, and Justices Robert J. Callahan, 61, and David M. Borden, 54.

The dramatic changes in the makeup of the state's Supreme Court are coming at a time when the U.S. Supreme Court is retreating from many of its major rulings on individual rights, forcing many litigants to seek greater protection from state constitutions. That is enhancing the role and importance of state appellate courts.

"What the U.S. Supreme Court is doing is giving more leeway to state governments," Horton said. "When you do that, it means that state constitutions will become more important. People have to realize that, in the 1990s, state constitutions will be where the action is."

Twardy said that Weicker would be looking for "good, solid, intelligent jurists," but would not choose or program his nominees by specific philosophies or beliefs.

"Clearly, Lowell Weicker has long been a strong proponent of, and supporter of, constitutional rights and liberties," Twardy said. "But he's not going to apply a litmus test of any sort. He's not going to sit there and say, `Will you be a judicial activist? Will you push this or that theory?' "

Twardy would not comment on the names under consideration for nomination to the state court. Two judges mentioned most frequently as contenders by lawyers and judges alike are Antoinette L. Dupont, chief judge of the Appellate Court, and Appellate Judge Flemming L. Norcott Jr., who also is mentioned as a possible nominee for a second federal judgeship that is vacant in Connecticut. Norcott is black, as is Glass -- the state Supreme Court's only minority justice.

Lawyer Douglas G. Nash, chief of appellate services for the Office of the Chief Public Defender, said he has no apprehension about a major change in the makeup of the court. He described the present court as middle-of-the-road, with no extremists.

Nash said the ability to shape the court at the state level is as important as being able to shape the U.S. Supreme Court, but that the philosophies and actions of appointees in the state will be more difficult to predict.

"Because most of the Supreme Court justices here are usually taken from the trial court or after a short stint on the Appellate Court, a lot less is known about how they view matters," Nash said. "I would think it's a lot more difficult [for Weicker] to shape things."

Ralph G. Elliot, an expert in constitutional law and a member of the state's Criminal Justice Commission, sees two directions Weicker could take in his appointments.

"On the one hand, I know there seems to be an increasing concern about stricter law enforcement in areas such as organized crime, probably a reflection of the background of his chief of staff and new chief state's attorney," Elliot said, referring to two posts filled by former federal prosecutors.

"On the other hand," he said, "Weicker is known, and his career has shown, he is extremely sensitive to civil liberties and constitutional rights. And I would suspect he views with some sadness what he probably sees as the cutting back of those protections and rights at the federal level."